R v Tez - [2007] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tez [2007] QCA 227

PARTIES:

R
v
TEZ, Jonathan Mehmet Ali

(applicant)

FILE NO/S:

CA No 98 of 2007

SC No 1070 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

18 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2007

JUDGES:

Chief Justice, Jerrard JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to trafficking in the dangerous drug cannabis sativa and associated drug offences – where applicant sentenced to three and a half years imprisonment – where applicant eligible for parole after serving 17 months actual imprisonment – where applicant had a significant prior criminal history – whether insufficient weight was given to matters of mitigation – whether sentence manifestly excessive

R v Gault [2006] QCA 316; CA No 212 of 2006, 28 August 2006, distinguished
R v Guzan [2005] QCA 158; CA No 41 of 2005, 13 May 2005, considered

COUNSEL:

A W Moynihan SC for the applicant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions (Queensland) for the respondent

MULLINS J: The applicant pleaded guilty and was sentenced on 20 March 2007 to trafficking in the dangerous drug cannabis sativa between 24 January and 24 March 2006, possessing the dangerous drug cannabis sativa on 23 March 2006 and possessing $280 obtained from trafficking in a dangerous drug knowing it to have been obtained from the trafficking.

A sentence of three and a half years' imprisonment was imposed for the trafficking and lesser concurrent sentences for the other offences. The date on which the applicant will be eligible for parole was fixed at 19 August 2008 after serving 17 months.

The applicant applies for leave to appeal against sentence on the basis that the sentence is manifestly excessive and that the learned sentencing Judge failed to give sufficient weight to the matters of mitigation.

The applicant was 25 years old when he committed the offences. He had a significant and relevant prior criminal history. After being dealt with for offending during 1997 and 1998 on several occasions whilst under 18 years of age, he was sentenced to four months' imprisonment in June 1999 for a break and enter. He was dealt with in the Parramatta Drug Court in late 1999 and participated in a Drug Court program. He was dealt with by the Drug Court for 17 offences including breaking and entering and dishonesty offences in March 2000, for which he was sentenced to a minimum term of two months that had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tez

Details

AGLC: R v Tez [2007] QCA 227
Case: [2007] QCA 227
Decision Date: 18 July 2007

CaseChat Overview and Summary

The appeal against sentence in R v Tez involved the applicant, who had pleaded guilty to trafficking in cannabis sativa and associated drug offences. The applicant was sentenced to three and a half years imprisonment, with eligibility for parole after serving 17 months. The applicant's significant prior criminal history was a notable factor in the sentencing process. The primary issue before the court was whether the sentence was manifestly excessive and whether sufficient weight had been given to the mitigating factors presented by the applicant.

The court examined the sentencing principles applicable to the case, considering the severity of the offences and the applicant's criminal history. The court emphasised the need to balance the deterrence and denunciation aspects of sentencing with the personal circumstances of the offender. The applicant argued that the sentence was excessively harsh and did not adequately consider the mitigating factors, such as the applicant's age, remorse, and the potential for rehabilitation. However, the court found that the sentence was within the appropriate range for the offences committed and that the sentencing judge had appropriately considered the mitigating factors.

In dismissing the application for leave to appeal, the court concluded that the sentence was not manifestly excessive and that the sentencing judge had given sufficient weight to the mitigating factors. The court held that the applicant's criminal history and the seriousness of the offences warranted a custodial sentence, and the sentence imposed was appropriate under the circumstances. The appeal against the sentence was therefore dismissed, and the original sentence stood.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Tez [2007] QCA 227
PARTIES:	R v TEZ, Jonathan Mehmet Ali (applicant)
FILE NO/S:	CA No 98 of 2007 SC No 1070 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	18 July 2007
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2007
JUDGES:	Chief Justice, Jerrard JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to trafficking in the dangerous drug cannabis sativa and associated drug offences – where applicant sentenced to three and a half years imprisonment – where applicant eligible for parole after serving 17 months actual imprisonment – where applicant had a significant prior criminal history – whether insufficient weight was given to matters of mitigation – whether sentence manifestly excessive R v Gault [2006] QCA 316; CA No 212 of 2006, 28 August 2006, distinguished R v Guzan [2005] QCA 158; CA No 41 of 2005, 13 May 2005, considered
COUNSEL:	A W Moynihan SC for the applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions (Queensland) for the respondent